SZHMM v Minister for Immigration

[2008] FMCA 343

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHMM v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 343

MIGRATION – Application to review decision of Refugee Review Tribunal where Tribunal found that it had no jurisdiction – summary dismissal.

Migration Act 1958 (Cth), ss.48B, 422B, 424A, 425
Federal Court of Australia Act 1976, s.31A
Federal Magistrates Act 1999, s.17A
Federal Magistrate Court Rules, r.13.10

Boston Commercial Services Proprietary Limited v G E Capital Finance Australasia Proprietary Limited (2006) 236 ALR 720
Dey v Victorian Railways Commissioners (1949) 78 CLR 62
Shantha Karunaratna Jayasinghe v Minister for Immigration & Ethnic Affairs & Anor [1997] FCA 551
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597
Minister for Immigration and Multicultural Affairs v Thiyagarajah (2000) 199 CLR 343
SZASP v Minister for Immigration and Citizenship [2007] FCA 771
SZHMM v Refugee Review Tribunal & Anor [2006] FMCA 932
SZHMM v Minister for Immigration & Multicultural Affairs [2006] FCA 1541
SZHMM v Minister for Immigration & Multicultural Affairs [2007] HCATrans 358
White Industries Australia Limited and Another  v The Commissioner for Taxationand Another (2007) 160 FCR 298

Applicant: SZHMM

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3372 of 2007

Judgment of: Barnes FM

Hearing date: 10 March 2008

Delivered at: Sydney

Delivered on: 10 March 2008

REPRESENTATION

Applicant: In person

Solicitors for the Respondent: Clayton Utz

ORDERS

1. That the applicant's application of 31 October 2007 and amended application of 19 February 2008 be dismissed pursuant to Rule 13.10(a) of the Federal Magistrates Court Rules.

2. That the applicant pay the costs of the first respondent fixed in the sum of $2,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3372 of 2007

SZHMM

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This matter comes before the Court by way of an application in a case filed by the first respondent on 8 January 2008 seeking summary dismissal of an application filed by the applicant on 31 October 2007.  That application sought review of a decision of the Refugee Review Tribunal dated 5 October 2007.  The Tribunal fount that it did not have jurisdiction to review a decision of a delegate of the first respondent refusing to grant the applicant a protection visa because the applicant had previously sought and obtained review by the Tribunal of that decision of the delegate. 

2. The first respondent seeks summary dismissal pursuant to r.13.10 of the Federal Magistrates Court Rules. The primary basis for the application for summary dismissal is pursuant to r.13.10(a). It is contended that the Court should be satisfied that the applicant has no reasonable prospect of successfully prosecuting the proceeding or claim.

3. It is necessary to have regard to the background to these proceedings, in particular the prior Tribunal and judicial review proceedings as set out in the affidavit of Andrea Maree Mansour sworn on 3 January 2008 and filed on 8 January 2008.

4. The applicant lodged an application for a protection visa with the Department of Immigration on 3 February 2005.  That application was refused by a delegate of the first respondent on 11 May 2005.  The applicant sought review of that decision with the Refugee Review Tribunal.  He attended a Tribunal hearing.  In a decision handed down on 18 October 2005 the Tribunal affirmed the delegate's decision. 

5. The applicant sought judicial review of the Tribunal decision by proceedings initiated in this Court.  On 16 June 2006 Scarlett FM ordered that the application be dismissed (see SZHMM v Refugee Review Tribunal & Anor [2006] FMCA 932). In the course of his judgment his Honour outlined in some detail the decision of the Tribunal and addressed each of the applicant's claims in his application and oral submissions, including claims of denial of natural justice, that the Tribunal ignored aspects of his claims and that it failed to comply with s.424A of the Migration Act1958 (Cth).

6. The applicant appealed to the Federal Court of Australia on 3 July 2006.  On 13 November 2006 Madgwick J dismissed the appeal (see SZHMM v Minister for Immigration & Multicultural Affairs [2006] FCA 1541). It is apparent that his Honour considered carefully the claims of the applicant in relation to alleged jurisdictional error on the part of the Tribunal. Indeed Madgwick J expressed concern about the operation of s.422B of the Migration Act in circumstances such as those that were before him (at [3] – [6]). Nonetheless his Honour found that the appeal must fail.

7. The applicant then sought special leave to appeal to the High Court.  On 1 August 2007 Kirby and Callinan JJ dismissed the application for special leave to appeal (see SZHMM v Minister for Immigration & Multicultural Affairs [2007] HCATrans 358). Their Honours outlined the applicant's claims and the prior judicial review proceedings but found that none of the arguments of the applicant raised any question of law for the Court to consider and did not show there was any jurisdictional error on the part of the Tribunal. Hence any appeal to the Court would have no prospect of success and the application was dismissed.

8. On 24 August 2007 the applicant applied again to the Tribunal for review of the same delegate's decision. As indicated, the Tribunal found that it did not have jurisdiction in this matter. In its reasons for decision the Tribunal pointed out that where the Tribunal has received a valid application for review of an RRT reviewable decision and carried out its statutory duty to review the decision it is precluded from again considering the matter. The Tribunal found that it had no jurisdiction to review a delegate's decision twice, even if circumstances in an applicant's own country had changed. It recognised that while that may not be grounds for a second application to the Tribunal it may be a basis on which the Minister may permit lodgement of a further protection visa application under s.48B of the Migration Act 1958. 

9. On the basis of that law the Tribunal found that as it had already discharged its functions under the Migration Act to review the delegate's decision of 11 May 2005 it no longer had jurisdiction in relation to that decision. Hence it was unnecessary to consider whether the review application was outside the prescribed time period and invalid on that basis.

10. The applicant sought review of that Tribunal decision by application filed in this Court on 31 October 2007. He subsequently filed an amended application on 19 February 2008. In considering the submissions of the first respondent in relation to r.13.10(a) I have considered the grounds raised both in the original application and in the amended application.

11. First, it is clear that the Tribunal's conclusion that as there had been a prior review of the delegate's decision it no longer had jurisdiction to review that decision because it had discharged its functions under the Migration Act to carry out such a review was correct (see Shantha Karunaratna Jayasinghe v Minister for Immigration & Ethnic Affairs & Anor [1997] FCA 551 and SZASP v Minister for Immigration and Citizenship [2007] FCA 771 at [4] and cases cited therein).

12. The grounds in the application and amended application establish no basis on which it could be said that there is any prospect of successfully establishing jurisdictional error in the Tribunal decision in issue. 

13. The first ground in the original application is that the Tribunal “did not invite me for hearing according to law”. However having found that it had no jurisdiction, the Tribunal was under no obligation to invite the applicant to a hearing under s.425 of the Migration Act1958 (Cth) or otherwise. In particular, it was not under an obligation to invite the applicant to a hearing in relation to the preliminary issue before it as to whether or not it had jurisdiction.

14. Similarly, the generally expressed contention that there was a breach of s.424A is not arguable as, again, the obligations of the Tribunal under s.424A did not arise in circumstances where it had made a decision that it had no jurisdiction.

15. In the amended application it was contended first that the Tribunal “did not consider my overall circumstances which made my life in danger” and in particular, “did not consider that if I went back to India the possibility of my persecution was very high by the government authority”. 

16. Insofar as this ground takes issue with the first Tribunal decision handed down on 18 October 2005 that Tribunal decision is not the subject of these proceedings.  The ground provides no basis for any argument of jurisdictional error on the part of the Tribunal which made the decision in relation to jurisdiction.  Having found that it had no jurisdiction it was not necessary, or indeed appropriate, for the Tribunal to consider the merits of the applicant's claims under the Refugees Convention and the integers of that claim.

17. The second ground is that the Tribunal did not consider the circumstances that would adversely affect the applicant if he went back to India, in particular the great harm that he would face because of the change of circumstances.  Insofar as this takes issue with the first Tribunal decision it is not relevant. 

18. Moreover as the Tribunal noted, even if circumstances in an applicant's home country have changed this does not provide a basis for the Tribunal to accept a second review application or to reconsider the delegate's decision (see Minister for Immigration and Multicultural Affairs v Thiyagarajah (2000) 199 CLR 343 at 30; Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at 7). As the Tribunal recognised, it may be a circumstance in which the applicant may seek that the Minister permits lodgement of a further protection visa application under s.48B of the Migration Act but it does not reveal any arguable jurisdictional error. It was not necessary or appropriate for the Tribunal (considering the issue of jurisdiction) to address arguments that the applicant now makes about changed circumstances in his home country.

19. The third ground is that there was a failure to accord the applicant natural justice in that the Tribunal did not invite him to attend a hearing and to comment on how he would be adversely affected by the change of circumstances in his home country. 

20. As indicated, the Tribunal was under no obligation to invite the applicant to a hearing in circumstances where it had no jurisdiction.  Given the lack of relevance of a change of circumstances to a decision based on an absence of jurisdiction it was not necessary for that matter to be put to the applicant either by way of a hearing, by way of letter, or in any other way.

21. I note in that respect that the applicant raised issues that might be seen to address issues of denial of natural justice in relation to the first Tribunal. That issue was considered by Madgwick J in relation to the first Tribunal decision. His Honour discussed the implications of s.422B of the Migration Act, suggesting at [6] that the consequence was that “as a matter of an ordinary Australian ‘fair go’ procedurally, this appellant appears not to have had one”. However, having expressed that view and raised the issue of whether or not s.422B might be repealed (or the Minister might exercise powers under s.417 of the Act), his Honour nonetheless found that the appeal must fail. His Honour has suggested that an avenue for the applicant might be to approach the Minister. However such findings do not in any way establish any arguable basis on which the applicant can establish a jurisdictional error on the part of the second Tribunal in its finding that it had no jurisdiction.

22. In considering whether the application should be dismissed summarily under r.13.10(a) of the Federal Magistrates Court Rules I have borne in mind the caution to be exercised in relation to any application for summary dismissal and that as a matter of principle an order which prevents a party from pursuing a claim should only be made in a very clear case (see Dey v Victorian Railways Commissioners (1949) 78 CLR 62). I have also borne in mind the scope of the test for summary dismissal now applicable under r.13.10(a) and s.17A of the Federal Magistrates Act 1999 and the equivalent provision in s.31A of the Federal Court of Australia Act 1976 as discussed by Rares J in Boston Commercial Services Proprietary Limited v G E Capital Finance Australasia Proprietary Limited (2006) 236 ALR 720 and also in White Industries Australia Limited and Another  v The Commissioner for Taxationand Another (2007) 160 FCR 298 at [45] – [60].

23. However for the reasons set out above I am satisfied that the application for review of the second Tribunal decision is bound to fail.  There has been no argument put before the Court by the applicant and nor, indeed, is there any argument available to him which holds any prospect of success in establishing that the second Tribunal had jurisdiction to consider afresh his entitlement to a protection visa or that it fell into jurisdictional error in finding that it had no jurisdiction.

24. I am satisfied that it has been established that the applicant has no reasonable prospect of successfully prosecuting this proceeding and hence, that his application should be dismissed pursuant to r.3.10(a) of the Federal Magistrates Court Rules. Thus it is not necessary for the Court to determine whether the proceedings are also an abuse of process (see SZASP v Minister for Immigration and Citizenship [2007] FCA 771).

25. As the application for summary dismissal has succeeded the applicant has been unsuccessful.  The first respondent seeks that he pay costs in the sum of $2,500.  The applicant told the Court that he has no earnings.  His impecuniosity is not, in the circumstances of this case, a reason for departing from the normal principle that the unsuccessful applicant should meet the costs of the respondent, although it may be a matter to be taken into account by the Minister in determining when and how to seek to recover such costs.  I consider that the amount of $2,500 which is sought is appropriate in light of the nature of this and other similar matters. 

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  19 February 2008